The opinion of the court was delivered by: KRAFT
The plaintiffs here challenge the constitutionality of a recently enacted amendment to Pennsylvania's Penal Code.
Following the entry of a temporary restraining order
on June 29, 1970, a Three-Judge Court was convened.
At the hearing on the plaintiffs' motion for a preliminary injunction on July 7, 1970, by agreement, the trial on the merits was advanced and consolidated with the preliminary injunction hearing. Fed. R. Civ. P. 65(a)(2).
Resort to extensive testimony was avoided by oral stipulations of counsel and by admissions in the answer of the District Attorney of the truth of the facts alleged in paragraphs 1 through 5 and 7 through 18
of plaintiffs' complaint. Accordingly, the facts so admitted in the pleadings are adopted by us and constitute, in part, our findings of fact.
It will be noted that this criminal statute, by reference, purports to adopt as its standards the ratings or standards of the Code and Rating Administration of the Motion Picture Association of America. One thing is immediately apparent. The ratings employed by the Association do not correspond to the statutory standards of "suitable" or "not suitable for family or children's viewing." The Association's ratings are:
"G -- All ages admitted. General audiences."
"GP -- All ages admitted. Parental guidance suggested."
"R -- Restricted. Under 17 requires accompanying parent or adult guardian."
"X -- No one under 17 admitted."
Ratings "G" and "GP" appear to encompass all "families", including "children". Category "R", however, indicates suitability for all, except children under 17 unaccompanied by parent or adult guardian. Category "X" indicates suitability for all except children under 17. By implication the Association's standards appear to define a child as one under 17 years of age, but the statute omits any age definition of "children".
Turning our attention to the substantive issue, it is manifest from a reading of Act No. 100 that, however well-intended, it is so patently vague and lacking in any ascertainable standards and so infringes upon the plaintiffs' rights to freedom of expression, as protected by the First and Fourteenth Amendments to the Federal Constitution, as to render it unconstitutional. Interstate Circuit v. Dallas, 390 U.S. 676, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968). The conclusory standards "suitable for family or children's viewing" and "not suitable for family or children's viewing" are left undefined in the statute and the attempted recourse to Association ratings is of no avail.
The statute subjects to criminal sanctions only those who show films rated by the Association, since exhibitors who do not show rated films, -- and there are many -- cannot violate this law. Such discrimination tends strongly to discourage the exercise by plaintiffs of First Amendment freedom. That no plaintiff has yet been prosecuted is of no consequence. "For (the) threat of sanctions may deter * * * almost as potently as the actual ...